U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
In re: Parker FOIA Request No. 06070535
Appeal of Documents Withheld
Under FOIA Exemption 7A
PROVIDED BY FAX TO 202-366-4566 AND BY OVERNIGHT MAIL
Administrator Thomas J. Barrett
Pipeline and Hazardous Materials Safety Administration
400—7th St. SW
Washington DC 20590
I am appealing PHMSA’s withholding of documents pertaining to the enforcement action against El Paso Energy Pipeline Group (El Paso) for the Carlsbad pipeline accident that occurred on August 19, 2000 in which twelve people died. I have attached a copy of my original request, dated July 1, 2006, as well as two later e-mails that limited and modified my request, Ex. 1, copies of the Pipeline and Hazardous Materials Safety Administration Pipeline Safety Program’s (PHSMA) responses, Ex. 2, and other Exhibits to support my request.
I received the denial of my FOIA request on October 12, 2006; Exhibit 2 contains the e-mail that I received from PHMSA’s Shauna Trumbull. That e-mail says that the denial was executed on October 6, 2006 and sent by certified mail. I never received this certified mail. The only denial I ever received was the denial received by electronic mail on October 12, 2006.
In addition to declining to release any documents from its Carlsbad El Paso enforcement process, PHMSA has also denied my application for a fee waiver for these documents. I have appealed that decision separately as instructed by PHMSA.
Statement of the Case
The Carlsbad pipeline tragedy occurred six years ago; twelve people died, including several children. It was the deadliest pipeline accident in the continental United States in twenty-five years. Ex. 3, Udall Press Release. Ten months after the accident, the U.S. Department of Transportation, Research and Special Programs Administration’s (RSPA)[1] Office of Pipeline Safety issued a Notice of Probable Violation to El Paso, alleging that El Paso had violated federal pipeline safety laws and that those violations had caused the ensuing accident. Ex. 4, Notice of Probable Violation. That Notice of Probable Violation sought a $2.5 million dollar penalty which RSPA trumpeted as the largest civil penalty ever proposed against a gas transmission pipeline operator in the history of the federal pipeline safety program. Ex. 5, RSPA Press Release. Today, more than six years after this horrible accident and more than five years after proposing this dramatic penalty, PHMSA, RSPA’s successor agency, has never collected it. This FOIA request seeks documents that might explain this inordinate delay.
1. Factual Background
a. The Carlsbad Accident
In August 2000, a fifty year old gas transmission pipeline ruptured near Carlsbad, New Mexico. Ex. 6, Nat’l Transp. Safety Bd., Natural Gas Pipeline Rupture and Fire Near Carlsbad, New Mexico August 19, 2000 at v, 16 (Feb. 11, 2003) available at: http://www.ntsb.gov/publictn/2003/PAR0301.pdf. Twelve people who were camped 675 feet from the pipeline died as a result of the explosion and ensuing fire. Id. at v, 9. In February 2003, the National Transportation Safety Board finished its investigation of the accident and concluded that, inter alia, the accident had been caused by corrosion; El Paso had had an ineffective corrosion control program; and ineffective Federal preaccident inspections by the Office of Pipeline Safety had contributed to the accident. Id. at 50. The pipeline remained out of service for almost a year and, as a result, the accident “contributed significantly” to the California energy crisis. Ex. 7, Staff of the Fed. Energy Regulatory Comm’n, Docket No. PA02-2-000, Final Report on Price Manipulation in Western Markets—Fact-Finding Investigation of Potential Manipulation of Electric and Natural Gas Prices at I-16, IV-2, IV-6, IV-11, and IV-19(2003).
b. FOIA Request and PHMSA’s Response
On July 1, 2006, I submitted a request for records related to the Carlsbad enforcement proceeding against El Paso from the U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration (PHMSA). Ex. 1. I expressly excluded technical information about the pipeline pertaining to what was done to ascertain that the pipeline was safe before it was re-opened. Id. On October 3, 2006, I received the initial response from PHMSA that denied the fee waiver I had sought; that initial response informed me that PHMSA had a standard policy to only release records for closed enforcement cases. Ex. 2. As a result, I limited and modified my request. Ex. 1.
I limited my request to those records that would comprise the adjudicatory docket. Such documents might include El Paso’s response to the Notice of Probable Violation as required by 49 C.F.R. § 190.209, any request for a hearing pursuant to 49 C.F.R. § 190.211, decisions by PHMSA to withdraw allegations (if any), the case file prepared pursuant to 49 C.F.R. § 190.213, etc. In other words, I limited my FOIA request to only those records which PHMSA had released to El Paso and those records which El Paso had submitted to PHMSA in the context of the adjudicatory proceeding.
I also modified my request by asking for a copy of PHMSA’s “standard policy” which, according to the PHMSA response I received on October 3, 2006, Ex. 2, precluded disclosure of any records pertaining to an open enforcement proceeding.
On October 12, 2006, I received PHMSA’s response refusing to release any documents based on this policy pursuant to FOIA Exemption 7A. That refusal alleged that release of those documents could interfere with enforcement proceedings. Ex. 2.
c. PHMSA’s Enforcement Procedures
PHMSA pipeline safety enforcement has been criticized for its delays. See, e.g., Ex. 8, Govt’s Memo. In Opposition to Equilon’s Motion to Stay Criminal Case Based on Primary Jurisdiction, CR01-0338R at 18, 21 (citing statement of Sen. Domenici: “…Office of Pipeline Safety has a poor history…of enforcement. It is true that the Office has been slow to act” and stating that the federal Office of Pipeline Safety enforcement program has “demonstrated and significant delays inherent in its administrative process”). In 2002, the Department of Justice reviewed the kinds of delays that occur in PHMSA’s enforcement proceedings. To illustrate, PHMSA’s regulations provide few time constraints; there is no deadline when a hearing must be held, there are three levels of review, and there is no detailed record of a hearing prepared. Id. at 18. PHMSA does not enforce those few deadlines that are in the regulations. Id. at 19. As a result, it can take PHMSA more than a decade to reach the conclusion of enforcement proceedings. Ex. 9, In re: Florida Gas Transmission Co., CPF No. 45102, Dep’t of Transp. PHMSA Office of Pipeline Safety (Jan. 2, 2006) (deciding a motion for reconsideration in 2006 for a Final Decision reached in 1997).
d. The Status of the El Paso PHMSA Enforcement Proceedings
PHMSA’s Notice of Probable Violation (Notice) was issued on June 20, 2001. Ex. 4. Despite PHMSA’s alleged “standard policy” of not releasing documents associated with open enforcement proceedings, PHMSA issued a press release along with the Notice, Ex. 5, and has maintained those documents on its web site since then. Ex. 10. PHMSA’s Notice alleged five violations of DOT regulations and proposed $2.5 million in fines and various corrective actions. Ex. 4. Since 2001, I have not found any information that PHMSA has released about the enforcement proceeding.
Notwithstanding PHMSA’s self-imposed gag order, up through September 2005, El Paso regularly provided information to its shareholders about the Government’s enforcement proceedings in El Paso’s filings with the Securities and Exchange Commission. Ex. 11, El Paso Corp. Annual Report for year ended Dec. 31, 2001; Ex. 12, same for 2002; Ex. 13, same for 2003; Ex. 14, same for 2004; Ex. 15, El Paso S-1 Registration Statement filed August 10, 2005; Ex. 16, El Paso Corp. Quarterly Report for Sept. 30, 2005; Ex. 17, El Paso Corp. Annual Report for year ended Dec. 31, 2005.
From those documents, the following civil fine process emerges. In October 2001, El Paso filed a response disputing each PHMSA allegation. Ex. 13, 2003 Annual Report. In December 2003, PHMSA referred the civil fine case to the Department of Justice (DOJ). Id. Shortly before August 2005, El Paso entered into a tolling agreement[2] with the DOJ, Ex. 15, S-1 Registration Statement Aug. 2005, which was extended at least once. Ex. 16, Quarterly Report Sep. 2005. For unknown reasons, at the end of December 2005, El Paso changed its past practice and stopped providing any detailed information about any enforcement related to the Carlsbad accident in its annual report to SEC. Ex. 17, Annual Report Dec. 2005 (showing the only sentence referring to “Carlsbad” found in that report.)
El Paso’s SEC filings also reveal information about a criminal investigation. On November 1, 2002, El Paso received a federal grand jury subpoena for documents related to the rupture. Ex. 12, Annual Report Dec. 2002. In December 2003 and January 2004, eight current and former employees were served with testimonial subpoenas issued by the grand jury. Ex. 14, Annual Report Dec. 2004. Eight individuals testified to the grand jury in 2004. Id. In August 2005, El Paso received a letter from the DOJ that the United States was not pursuing any criminal prosecutions associated with the rupture. Ex. 16, Quarterly Report Sep. 2005.
2. The Requirements of the Freedom of Information Act
a. FOIA Fundamentals
The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). FOIA is broadly conceived and its basic policy is in favor of disclosure. Id. at 221. That said, Congress provided nine FOIA exemptions to protect certain confidentiality and privacy concerns. Id. In order to serve the basic policy of disclosure, those exemptions must be construed narrowly. Solar Sources, Inc. v. U.S., 142 F.3d 1033, 1037 (7th Cir. 1998). Accordingly, the Government bears the burden of justifying its decision to withhold requested documents. Id.
Even if a FOIA exemption applies, withholding is discretionary; i.e., FOIA permits the agency to withhold the documents but FOIA does not mandate withholding. Crumpton v. Stone, 59 F.3d 1400, 1404 (D.C. Cir. 1995). Furthermore, before withholding an entire document, an agency must first consider whether any portion of the document is reasonably segregable and thus, non-exempt; such portions must be released unless an entire document is exempt. 5 U.S.C. § 552(b).
FOIA divides agency records into three broad categories. The first category of documents must be published in the Federal Register. 5 U.S.C. § 552(a)(1). This category includes “statements of general policy.” Id. at D. If a statement of general policy is not published in the Federal Register as required, no person may be adversely affected by it. Id.
The second category of documents must be made available for public inspection and copying. 5 U.S.C. § 552(a)(2). This category includes policies that are adopted by the agency but not published in the Federal Register. Id. at B. A statement of policy that affects a member of the public may only be relied upon by an agency if it has been made available as required or if the party has actual and timely notice of the terms of that policy. Id. at (a)(2)(i and ii). These first two FOIA categories were intended to eliminate the “secret law” that agencies developed. U.S. Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 771 n. 20 (1989).
The third FOIA category consists of all other agency documents and requires that they be made available upon request subject to FOIA’s nine exemptions. 5 U.S.C. § 552(a)(3) and (b).
b. Exemption 7A
FOIA Exemption 7A permits agencies to withhold records or information compiled for law enforcement purposes but only to the extent that disclosure of such records “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). Thus, Exemption 7A requires that an agency demonstrate that (1) law enforcement proceedings are pending or prospective; and (2) release of the information could reasonably be expected to cause some articulable harm. Robbins Tire, 437 U.S. at 224.
The type of interference Congress wished to prevent was harm to the Government’s case in court; therefore, Exemption 7A prevents litigants from gaining earlier or greater access to agency investigative files than they otherwise would have. Robbins Tire, 437 U.S. at 224-25.
As such, when disclosure might reveal information in an agency’s investigative files to a potential target of its investigation, courts generally deny access to those records if the agency shows that interference would reasonably be expected. The interference that might reasonably result from disclosure of investigative records and affect law enforcement proceedings includes (1) revealing the scope, size and direction of the investigation, (2) revealing information that would permit a target to evade enforcement, (3) witness intimidation, (4) fabrication of fraudulent alibis, and (5) destruction of evidence. See, e.g., Solar Sources, Inc. v. U.S., 142 F.3d 1033, 1036 (7th Cir. 1997) (requesting parties were not targets of antitrust investigation but materials sought included grand jury information, documents filed under seal, and internal memoranda); Kay v. Fed. Communications Comm’n, 976 F.Supp. 23, 31 (D.D.C. 1997) (upholding withholding where radio licensee sought investigatory records relating to Commission’s investigation of licensee); Wichlacz v. U.S. Dep’t of Interior, 938 F.Supp. 325, 331 (E.D. Va. 1996) (upholding withholding where newsletter requested investigatory records compiled in investigation of suicide of White House deputy counsel in a national park); Alyeska Pipeline Services Co. v. Environmental Protection Agency, 1987 WL 17071 at *2 (upholding withholding where potential corporate target of investigation sought corporate documents provided to EPA by whistleblower).